“Trump calls into Pennsylvania hearing, rambles about voter fraud on speakerphone”

NBC News:

President Donald Trump on Wednesday phoned into a Pennsylvania state Senate hearing where his lawyers were appearing as part of their shriveling legal battle against the election results.

After calling his lawyers in the middle of the hearing — held at the Wyndham Hotel in Gettysburg, Pennsylvania — Trump launched a breathless, 10-minute-long rant about election fraud during which he surfaced many of his familiar false claims about dead people voting, illegal ballots, Democrats’ corruption and more.

“We have to turn the election over, because there’s no doubt we have all the evidence, we have all the affidavits, we have everything,” he said, providing no evidence of his various allegations. “All we need is to have some judge listen to it properly without having a political opinion or having another kind of a problem, because we have everything and, by the way, the evidence is pouring in now as we speak.”


“As States Certify Ballot Totals, An Extraordinary Election Comes To An End”

Pam Fessler for NPR:

Signs of a tattered, but resilient, voting system were on full display this week as one of the most contentious elections in U.S. history rolled toward completion.

Pennsylvania, Michigan, Nevada and North Carolina put the final stamp of approval on their official vote counts, while workers re-tallied millions of ballots in Georgia and Wisconsin to assure the Trump campaign that the initial count was accurate. Courts in Pennsylvania, Michigan and elsewhere reviewed and, almost uniformly, rejected legal challenges for lack of merit.

The 2020 election was extraordinary in so many ways. A pandemic forced election workers to shift their attention from guarding against Russian phishing attacks to acquiring adequate supplies of hand sanitizers and printing millions of mail-in ballots. But more extraordinary were the unrelenting attacks on the legitimacy of the system, primarily by President Trump and his allies, and the resulting decline in public trust.


Donor Sues True the Vote Claiming He Gave $2.5 Million to Fund Jim Bopp Litigation to Expose Fraud in Battleground States to Help Trump, But the Group Withdrew Their Complaints and Did Nothing. He Wants a Refund.

Read the complaint here (via Cameron Langford). One of the allegations of the complaint is that TTV withdrew the 4 lawsuits in cooperation with the Trump campaign.

Can’t wait to hear the rest of this story.

More thoughts in this thread.


Breaking: Pennsylvania State Judge Temporarily Blocks Certification, to the Extent It is Not Already Complete, of Biden as Winner, and Blocks Certification in Other Races Pending Friday Hearing [Corrected and Updated]

This order comes in a bonkers lawsuit that claims all vote-by-mail in Pennsylvania was illegal, rendering the election for every office a nullity.

This won’t stick as the case works its way up the food chain.

Update: And now the matter has been appealed to the state supreme court, which I appears to act acts as an automatic stay of the order pending consideration.


Announcement from AALS Section on Election Law, Including New Lifetime Achievement Award to Richard Briffault

Announcement via email (and congratulations for the well deserved recognition to Richard!):

The Section on Election Law’s New Initiatives at AALS

This year, under Gene Mazo’s leadership, the Section on Election Law at AALS has spearheaded several new initiatives, in addition to organizing its annual panel. Please read below to learn more.
1. The Section’s Regular Panel
The Section on Election Law will hold its regular panel this year on Wednesday, January 5, 2021, from 11:00 a.m. to 12:15 p.m. The title of this year’s panel is “Voting during a Pandemic: Lessons from 2020.” The panel’s lineup includes: 
Edward Foley (Ohio State)Rebecca Green (William & Mary)Justin Levitt (Loyola-Los Angeles)  
Lisa Marshall Manheim (U. of Washington)Michael Morley (Florida State)Bertrall Ross (U. of California, Berkeley)  
Eugene Mazo (U. of Louisville) [Chair]
2. The Section’s (new) New Voices Works-in-Progress Program
The Section on Election Law is organizing a New Voices Works-in-Progress event for the first time this year, with the goal of holding such an event at every AALS conference from now on. This year’s Works-in-Progress event will take place on Saturday, Jan. 9, 2021, starting at 4:15 pm. So far, 25 election law scholars have signed up to present or comment on a draft paper. If you will be attending AALS and wish to participate, please email Gene Mazo (eugene.mazo@louisville.edu).  

3. The Section’s new Newsletter
The Section on Election Law is also starting a new Newsletter this year. The goal of this Newsletter will be to introduce new scholars to our community and, importantly, to list the many new scholarly publications in our field from the prior year in one place. The Newsletter will be distributed in late-December. If you have new scholarly publications from 2020 or 2019, please email a list of them to Gene Mazo (eugene.mazo@louisville.edu) by December 7, 2020, so that they can be included in this Newsletter.

4. The Section’s new Distinguished Scholarship Award

The Section on Election Law has established two new professional awards in our field this year. The first of these is our new Distinguished Scholarship Award in Election Law. This will be awarded annually from now on for “a single work that exemplifies excellence in the field and that is published within a given year.” The term “work” is defined broadly. Any book or article that has been published in 2020 or 2019 will be eligible for the award this year. If you have published an article, book, or other piece of scholarship and wish for it to be considered for this award, please let Gene Mazo know by Monday, Dec. 7, 2020. 
5. The John Hart Ely Prize in the Law of Democracy
Finally, the Section on Election Law has established a new lifetime achievement award. This award will be presented annually by the Section’s executive committee to a senior scholar in our field for his or her “extraordinary lifetime contributions to the study of election law or the law of democracy in the United States.” The Section has chosen to name this award the John Hart Ely Prize in the Law of Democracy. The John Hart Ely Prize is purposely designed to be the most prestigious award in our field.
This year, after careful deliberation, the Section has chosen Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, as the inaugural recipient of the John Hart Ely Prize. Among active scholars, Professor Briffault has been teaching election law longer than anyone in the American legal academy. He has authored more than 75 law review articles, many of which have profoundly influenced our understanding of public funding, campaign finance, state and local government law, and other topics in the law of democracy The John Hart Ely Prize will be presented to Professor Briffault on Tuesday, Jan. 5, 2021, at 1:15 p.m. If you will be attending AALS this year, please try to make the awards ceremony. 

Many congratulations to Richard!  


Trump Campaign Continues to Assert, Even After Pennsylvania Certified Its Presidential Election Results for Biden, That a Federal Court Could Nullify That and Let PA’s Legislature Choose Trump

From a footnote in this letter from the Trump campaign purportedly about Rudy’s availability to offer oral argument in the 3rd Circuit (one of a series of 5 footnotes seeking to improperly argue the merits in a filing like this):


Trump Expected to Show Up with Giuliani at Unofficial “Hearing” in Gettysburg PA Wednesday to Push False Voter Fraud Accusations

Jeremy Diamond:

Jennifer Jacobs:


Must Read from Tim Alberta: “The Inside Story of Michigan’s Fake Voter Fraud Scandal”

This Politico piece is so good to understand how the depravity of the voter fraud myth spread in Michigan and is undermining the integrity of Republican officials in the state. It begins:

After five years spent bullying the Republican Party into submission, President Donald Trump finally met his match in Aaron Van Langevelde.


That’s right. In the end, it wasn’t a senator or a judge or a general who stood up to the leader of the free world. There was no dramatic, made-for-Hollywood collision of cosmic egos. Rather, the death knell of Trump’s presidency was sounded by a baby-faced lawyer, looking over his glasses on a grainy Zoom feed on a gloomy Monday afternoon, reading from a statement that reflected a courage and moral clarity that has gone AWOL from his party, pleading with the tens of thousands of people watching online to understand that some lines can never be uncrossed.

“We must not attempt to exercise power we simply don’t have,” declared Van Langevelde, a member of Michigan’s board of state canvassers, the ministerial body with sole authority to make official Joe Biden’s victory over Trump. “As John Adams once said, ‘We are a government of laws, not men.’ This board needs to adhere to that principle here today. This board must do its part to uphold the rule of law and comply with our legal duty to certify this election.”

Van Langevelde is a Republican. He works for Republicans in the Statehouse. He gives legal guidance to advance Republican causes and win Republican campaigns. As a Republican, his mandate for Monday’s hearing—handed down from the state party chair, the national party chair and the president himself—was straightforward. They wanted Michigan’s board of canvassers to delay certification of Biden’s victory. Never mind that Trump lost by more than 154,000 votes, or that results were already certified in all 83 counties. The plan was to drag things out, to further muddy the election waters and delegitimize the process, to force the courts to take unprecedented actions that would forever taint Michigan’s process of certifying elections. Not because it was going to help Trump win but because it was going to help Trump cope with a loss. The president was not accepting defeat. That meant no Republican with career ambitions could accept it, either.

Which made Van Langevelde’s vote for certification all the more remarkable. With the other Republican on the four-person board, Norman Shinkle, abstaining on the final vote—a cowardly abdication of duty—the 40-year-old Van Langevelde delivered the verdict on his own. At a low point in his party’s existence, with much of the GOP’s leadership class pre-writing their own political epitaphs by empowering Trump to lay waste to the country’s foundational democratic norms, an obscure lawyer from west Michigan stood on principle. It proved to be the nail in Trump’s coffin: Shortly after Michigan’s vote to certify, the General Services Administration finally commenced the official transition of power and Trump tweeted out a statement affirming the move “in the best interest of our Country.”

Still, the drama in Lansing raised deeper questions about the health of our political system and the sturdiness of American democracy. Why were Republicans who privately admitted Trump’s legitimate defeat publicly alleging massive fraud? Why did it fall to a little-known figure like Van Langevelde to buffer the country from an unprecedented layer of turmoil? Why did the battleground state that dealt Trump his most decisive defeat—by a wide margin—become the epicenter of America’s electoral crisis?

I also found this bit very interesting:

There is no immediate way to make Americans appreciate this distinction, no instant cure for the flagging confidence in our elections. But there are obvious incremental steps to take in the name of transparency and efficiency. First among them, acknowledged Chatfield, the Michigan House speaker, is getting rid of the rules that led to the TCF Center circus in the first place.

“There’s a lot we can learn in the state of Michigan, because the way we’ve handled this, it’s become a national embarrassment,” Chatfield told me in a brief interview after the final certification vote. “And one of the items where we should look at other states and see how they’ve done it well, is regarding the early processing of absentee ballots. We mishandled that this year. We should have allowed for early processing. We didn’t, and it became a spectacle. I think we can learn from that. It should be something the Legislature fixes moving forward.”

This is relatively easy for Chatfield to admit—he’s term limited and leaving office soon. For those Republicans left to pick up the pieces in the coming legislative session, there may be little incentive for bipartisan cooperation on a subject that now divides the two party bases as starkly as gun rights or tax rates. The backlash against absentee voting from Republican constituents was already fierce; in the wake of Trump’s defeat and the TCF Center conspiracies, Republicans might find it beneficial to avoid raising the issue at all.

There is little cause for optimism. If the majority of GOP politicians couldn’t be bothered to do the easy work of debunking crackpot conspiracy theories, how likely are they to do the hard work of hardening our democracy?

“A lot of our leaders in this country ought to be ashamed of themselves,” said Thomas, the nonpartisan elections guru who kept Michigan’s governing class guessing his political affiliation for the past several decades. “They have propagated this narrative of massive fraud, and it’s simply not true. They’ve leapt from some human error to massive fraud. It’s like a leap to Never Neverland. And people are believing them.”

He exhaled with a disgusted groan.

“The people of this country really need to wake up and start thinking for themselves and looking for facts—not conspiracy theories being peddled by people who are supposed to be responsible leaders, but facts,” Thomas said. “If they’re not going to be responsible leaders, people need to seek out the truth for themselves. If people don’t do that—if they no longer trust how we elect the president of the United States—we’re going to be in real trouble.”


“This unnerving election does not bode well for the next one”

Ned Foley WaPo column:

In 2020, the plan backfired. The judicial shellacking of Trump’s fact-free claims gave backbone to these other political actors to withstand Trump’s all-out assault on letting the voters decide whom they wanted in the White House for the next four years.AD

And yet, it is important to recognize how vulnerable the electoral system remains to this kind of authoritarian pressure. Different individuals inhabiting the same political offices, or perhaps even the same individuals faced with just slightly less clear-cut circumstances, could have produced the opposite outcome this year — and could do so four years from now.

This year is a reminder of just how dependent democracy is on the little-known individuals who actually administer the process for counting the votes. In Georgia, Republican Secretary of State Brad Raffensperger emerged as the unexpected hero of upholding free and fair elections, asserting that “as an engineer,” he knows that “numbers don’t lie.”

Suppose, however, that Raffensperger had buckled under Trump’s attack and said that he did not trust his own state’s results? Even if the truth had been just the same, the public narrative over Georgia’s outcome might have played out far differently.


Yesterday the PA Supreme Court Decided a Case That Will Move a State Senate Candidate from a 4-Vote Lead to a 94-Vote Deficit, and The Swing Judicial Vote Agrees with the Candidate’s Position in Future Cases. He’s Asked for Rehearing

This is a crazy situation (via How Appealing):

The Republican challenger in the 45th Senatorial District that includes parts of Allegheny and Westmoreland counties has asked the state Supreme Court to reconsider its Monday order allowing undated mail-in ballots to be counted.

Nicole Ziccarelli, of Lower Burrell, filed an emergency application for reargument Tuesday morning. She is running in the race against Democratic incumbent Sen. Jim Brewster.

As of late Tuesday morning, Ziccarelli was leading by four votes, according to online results in the district that includes the Alle-Kiski and Mon valleys. That number, however, still does not include the undated ballots in Allegheny County, which break for Brewster by 94 votes.

On Monday, the state Supreme Court issued a split decision on the issue, with the majority finding that the 2,349 undated mail-in ballots that Ziccarelli challenged ought to be counted.

The court wrote that the missing dates are a technical violation of the Election Code but do not warrant disenfranchising thousands of voters. On the back of the envelope for mail-in ballots, voters are told to write the date, plus their signature, printed name and address.

The majority opinion, written by Justice Christine Donohue, was joined by Justices Max Baer and Debra Todd, with Justice David Wecht concurring in the results. Wecht wrote a concurring and dissenting opinion, as did Justice Kevin Dougherty, in which Chief Justice Tom Saylor and Justice Sally Updyke Mundy joined.

That split is what prompted Ziccarelli’s request for reargument.

Her attorney noted that Wecht, Dougherty, Saylor and Mundy all agreed that the undated ballots were not compliant with the Election Code and therefore are invalid.

“Nevertheless, the court then allowed those ballots to be canvassed and counted, even though a majority of the justices agreed that they were statutorily invalid.”

In his concurring and dissenting opinion, Wecht wrote that in future elections, he would treat the date and signing requirement in the Election Code as mandatory. That means, he wrote, that the omission of either is sufficient to invalidate a ballot.

“However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively,” Wecht wrote.


Must-Read from NYT’s Alex Burns: “Trump Stress-Tested the Election System, and the Cracks Showed”

I was going to write a piece like this until I read Alex’s:

As President Trump’s efforts to overturn the 2020 election have steadily disintegrated, the country appears to have escaped a doomsday scenario in the campaign’s epilogue: Since Nov. 3, there have been no tanks in the streets or widespread civil unrest, no brazen intervention by the judiciary or a partisan state legislature. Joseph R. Biden Jr.’s obvious victory has withstood Mr. Trump’s peddling of conspiracy theories and his campaign of groundless lawsuits.

In the end — and the postelection standoff instigated by Mr. Trump and his party is truly nearing its end — the president’s attack on the election wheezed to an anticlimax. It was marked not by dangerous new political convulsions but by a letter from an obscure Trump-appointed bureaucrat, Emily W. Murphy of the General Services Administration, authorizing the process of formally handing over the government to Mr. Biden.

For now, the country appears to have avoided a ruinous breakdown of its electoral system.

Next time, Americans might not be so lucky.

While Mr. Trump’s mission to subvert the election has so far failed at every turn, it has nevertheless exposed deep cracks in the edifice of American democracy and opened the way for future disruption and perhaps disaster. With the most amateurish of efforts, Mr. Trump managed to freeze the passage of power for most of a month, commanding submissive indulgence from Republicans and stirring fear and frustration among Democrats as he explored a range of wild options for thwarting Mr. Biden.

He never came close to achieving his goal: Key state officials resisted his entreaties to disenfranchise huge numbers of voters, and judges all but laughed his legal team out of court.

Ben Ginsberg, the most prominent Republican election lawyer of his generation, said he doubted any future candidates would attempt to replicate Mr. Trump’s precise approach, because it has been so unsuccessful. Few candidates and election lawyers, Mr. Ginsberg suggested, would regard Rudolph W. Giuliani and Sidney Powell — the public faces of Mr. Trump’s litigation — as the authors of an ingenious new playbook.

“If in a few months, we look back and see that this Trump strategy was just an utter failure, then it’s not likely to be copied,” said Mr. Ginsberg, who represented former President George W. Bush in the 2000 election standoff. “But the system was stress-tested as never before.”

That test, he said, revealed enough vague provisions and holes in American election law to make a crisis all too plausible. He pointed in particular to the lack of uniform standards for the timely certification of elections by state authorities, and the uncertainty about whether state legislatures had the power to appoint their own electors in defiance of the popular vote. The 2020 election, he said, “should be a call for some consideration of those issues.”

Yet even without precipitating a full-blown constitutional crisis, Mr. Trump has already shattered the longstanding norm that a defeated candidate should concede quickly and gracefully and avoid contesting the results for no good reason. He and his allies also rejected the longstanding convention that the news media should declare a winner, and instead exploited the fragmentation of the media and the rise of platforms like Twitter and Facebook to encourage an alternative-reality experience for his supporters.


“Pennsylvania certifies its presidential election results, officially declaring Joe Biden the winner”

Philadelphia Inquirer:

Pennsylvania’s top elections official certified the state’s presidential election results on Tuesday, officially declaring Joe Biden the winner and paving the way for him to receive the state’s 20 Electoral College votes next month.

Pennsylvania Secretary of State Kathy Boockvar made the final count official, three weeks after the Nov. 3 election: Biden received 3,458,229 votes, 80,555 more than President Donald Trump’s 3,377,674 votes.

Gov. Tom Wolf then signed the Certificate of Ascertainment to name the 20 Biden electors who will meet in Harrisburg on Dec. 14. “Today’s certification is a testament to the incredible efforts of our local and state election officials, who worked tirelessly to ensure Pennsylvania had a free, fair and accurate process that reflects the will of the voters,” Wolf said in a statement.

Still, Trump’s campaign continues to press its case in court, dismissing certification as “just a procedural step” in a statement Monday and arguing that a favorable court ruling could disrupt the state’s slate of electors anytime before the Dec. 8 cutoff date in federal law.

The Biden campaign celebrated the state certification and predicted the long-shot Trump legal challenges would go nowhere.

“Trump did everything he could to disenfranchise voters and stop the results from being certified in Pennsylvania, including filing over 15 unsuccessful lawsuits — most recently producing one of the more embarrassing courtroom performances of all time, with the judge in the case ruling that their arguments were ‘without merit’ and ‘unsupported by evidence,’” senior Biden campaign adviser Bob Bauer said in a statement. “Trump did not succeed in Pennsylvania and he will not succeed anywhere else. Trump’s lawsuits will continue to fail, as they have in over 30 cases since election day, states will continue to certify their results, and Joe Biden will be sworn in as President on January 20, 2021.”


“Right-Wing Social Media Finalizes Its Divorce From Reality”

Renee DiResta for The Atlantic:

Yet reducing the supply of misinformation doesn’t eliminate the demand. Powerful online influencers and the right-wing demi-media—intensely partisan outlets, such as One America News and Newsmax, that amplify ideas that bubble up from internet message boards—have steadfastly reassured Trump’s supporters that he will be reelected, and that the conspiracies against him will be exposed. No doubt seeing an opportunity to pull viewers from a more established rival, One America News Network ran a segment attacking Fox’s Arizona call and declaring the network a “Democrat Party hack.” The president himself, while tweeting about how the election was being stolen, amplified accounts that touted OANN and Newsmax as places to find accurate reporting on the truth about his election victory. And on Parler, the conspiracy-mongering has grown only more frenzied as Trump makes state-by-state fraud allegations: In addition to concerns about Sharpies, the social network abounds with rumors of CIA supercomputers with secret programs to change votes, allegations of massive numbers of dead people voting, claims of backdated ballots, and assorted other speculations that users attempt to coalesce into a grand unified theory of election theft.


The PA Supreme Court’s Interesting Recent Decision

I realize this is of interest only to election-law folks at this point, but I wanted to highlight some noteworthy aspects of the PA Supreme Court’s recent 3-1-3 election-law decision.

The issues are whether absentee ballots are valid votes if the voter failed to comply with requirements to (1) put the date down on which they cast the ballot; (2) handwrite their name; and/or (3) put down their address.  There are no allegations of fraud or any other irregularities in these cases.  The case involved 8,329 ballots in Philadelphia County and 2,349 ballots in Allegheny County, and the lower courts in these counties came out differently on the issues.

All these issues turn on how a state court should interpret the state election code.

First, the supreme court voted 7-0 to treat as valid ballots in categories (2) and (3).  The reasons for this unanimity were that the election code itself does not impose these requirements.  These requirements were imposed by the Secretary of State, exercising delegated authority, and while this information was required to improve the administrative and processing of absentee ballots, inclusion of this information was held not to serve any “weighty” state interests in ensuring the integrity of the absentee-ballot process.

 Second, in contrast, the court held 4-3 that ballots in category (1) – those on which the voter had failed to include the date the ballot was filled out – were invalid votes.  The reasons these four justices reached that conclusion is that the election code itself did include this requirement and, in addition, stated that voters “shall” date and sign the absentee ballot envelope.  The combination of these two factors led the majority of four to hold that it was inappropriate for election officials and courts to not treat these requirements as binding.  The dissenting three justices took a more functional approach to the statutory language; they argued that the state’s purposes in ensuring these were valid votes was fully served by the fact that the ballots were all received on time, since election officials time-stamp the date of receipt.

 Third, one justice (Judge Wecht) who agreed a ballot was invalid if the voter failed to provide the date it was cast nonetheless voted not to invalidate those ballots for this election.  His opinion provides a detailed analysis of the PA Supreme Court’s jurisprudence on election issues over time, coupled with his criticism that the court has been too free-wheeling in departing from the text of the election code.  But he notes all the complicated changes PA made to its absentee voting system, starting with the major bipartisan 2019 legislation that created no-excuse absentee voting, implemented for the first time this year during a general election, and concludes that voters had not been given clear enough instructions and warnings that failing to include the date would make their ballot invalid.  As he put it, “it would be unfair to punish voters for the incidents of systemic growing pains.”   So he voted to make his ruling only prospective, meaning it would apply to future elections.

 Finally, Judge Wecht, in urging the state legislature to address many of the issues that arose in this election, noted that the federal Voting Rights Act includes a provision that makes it illegal to deny the right to vote for “immaterial reasons.”  He then suggested that it would be inconsistent with this provision to insert more requirements for absentee ballots than considerations of fraud, election security, and voter qualifications require.

I wanted to flag this decision for many reasons, one of which is that it’s gratifying to see these shifting alignments, which suggest a court grappling in good-faith with methodological and interpretive issues over how courts should read state election codes.  PA is one of eight states that elects its judges in partisan elections.  The Court has aa 5-2 Democratic majority. 


A Note of Thanks, And a Blog Slowdown, as I Complete My “Cheap Speech” Book Manuscript and Contemplate the Future of the Election Law Blog and Election Reform Work

This election season has been a challenge to American democracy, one that was even more severe than I anticipated in Election Meltdown. That book came out in February, the day of the Iowa caucus debacle, and things declined from there. In February, I convened a group of leading thinkers in law, politics, tech, and media to discuss the threats to the integrity of the election, in a conference called, Can American Democracy Survive the 2020 Elections? The question was not meant rhetorically.

Some the participants in that conference participated in a private meeting after to begin to hammer out recommendations to assure a fair and safe 2020 election. That conference turned out to be the last big conference I attended before COVID shut down in-person gatherings. The group continued to deliberate about recommendations online, even as some of its members contracted the virus. The recommendations had to be reworked given COVID.

In late April, we released our report, Fair Elections During a Crisis, and the report had some key recommendations which got a fair bit of attention and traction, including the key idea needed to be prepared that because of COVID, the election could be too early to call for a number of days, and in the meantime there could be unsubstantiated claims of voter fraud and disinformation, and an attempt to undermine American democracy. That meant that social media companies had an important role to play in combatting disinformation. It also called for election administrators and Congress to assure that Americans had safe mail-in and in-person voting options in November.

Over the last few months, Donald Trump’s attack on the integrity of the election system, and the willingness of many in the Republican party to go along with completely unsubstantiated claims of voter fraud and vote rigging, have put the system under tremendous strain. That’s why it was so important that we had as fair and clean an election as possible. I am in awe and grateful to the state and local election administrators of both parties who engaged in Herculean effort to make our election fair. I am profoundly disappointed that some Republican legislators and others acted to make it harder to vote even during a pandemic, and that some courts, including the Supreme Court, have engaged in new jurisprudence which made voting harder than it needed to be during the pandemic, and, as I wrote yesterday in the Times, will present new voting rights challenges in the future.

As someone who has been out in public explaining the complex rules surrounding our elections and the litigation that inevitably accompanies disputes in American life, I want to express my appreciation to the community of election law scholars and political scientists who worked tirelessly to assure that the public got fair and accurate information, and who debated and discussed issues in good faith despite some ideological disagreements. It is really easy to make errors in the midst of election disputes, and I made fewer mistakes because of this rich and generous community.

And I want to express my great appreciation for courts that have held up the rule of law, again despite the usual ideological agreements. When our norms have been challenged, our laws have held—barely, but held.

I’m now going to step back from the blog to complete work on my book manuscript, Cheap Speech, that is considering questions of how do deal with the flood of misinformation and disinformation about elections that will pervade the process going forward. I’m way behind now because of what has transpired over the last few months.

I’ll still blog the most important developments, but I plan to write much less in this space for the rest of the year. I also plan to take some time to think about the future of ELB. I’ve been running this blog since 2003: it is a labor of love but a tremendous amount of work. I need to consider the most sustainable model going forward.

I also would like to find time to consider long term election reform. As I wrote in the New York Times in August:

Beyond triage for 2020, longer term change requires bolder thinking. We need a new social movement, that may take a generation or more, pushing a constitutional amendment protecting the right to vote. It would guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.

Talking of a constitutional amendment in the current polarized atmosphere may sound like a pipe dream when Congress cannot pass even basic voting rights protections, like restoring the part of the Voting Rights Act that the Supreme Court destroyed. But the current situation is untenable.

We need a 28th Amendment for voter equality around which people can organize and agitate. Organization could emulate the battle for passage of the 19th Amendment, which bars gender discrimination in voting. It took more than a generation for that amendment to pass, and along the way activists for equal women’s suffrage got state legislatures to bolster voting rights and the public to change its attitudes about voting.

It has been 100 years since passage of the 19th Amendment and 150 since the passage of the 15th Amendment barring racial discrimination in voting. Despite those accomplishments, every national election features endless angst and litigation over assuring people the right to vote, which puts special burdens on those who already face the greatest barriers. We need to bring that struggle to an end and press forward toward a new voting rights amendment that would assure that our representatives truly reflect the will of the people.

Thank you for reading, and Happy Thanksgiving!


“Roiled by Election, Facebook Struggles to Balance Civility and Growth”


In the tense days after the presidential election, a team of Facebook employees presented the chief executive, Mark Zuckerberg, with an alarming finding: Election-related misinformation was going viral on the site.

President Trump was already casting the election as rigged, and stories from right-wing media outlets with false and misleading claims about discarded ballots, miscounted votes and skewed tallies were among the most popular news stories on the platform.

In response, the employees proposed an emergency change to the site’s news feed algorithm, which helps determine what more than two billion people see every day. It involved emphasizing the importance of what Facebook calls “news ecosystem quality” scores, or N.E.Q., a secret internal ranking it assigns to news publishers based on signals about the quality of their journalism.

Typically, N.E.Q. scores play a minor role in determining what appears on users’ feeds. But several days after the election, Mr. Zuckerberg agreed to increase the weight that Facebook’s algorithm gave to N.E.Q. scores to make sure authoritative news appeared more prominently, said three people with knowledge of the decision, who were not authorized to discuss internal deliberations.

The change was part of the “break glass” plans Facebook had spent months developing for the aftermath of a contested election. It resulted in a spike in visibility for big, mainstream publishers like CNN, The New York Times and NPR, while posts from highly engaged hyperpartisan pages, such as Breitbart and Occupy Democrats, became less visible, the employees said.

It was a vision of what a calmer, less divisive Facebook might look like. Some employees argued the change should become permanent, even if it was unclear how that might affect the amount of time people spent on Facebook. In an employee meeting the week after the election, workers asked whether the “nicer news feed” could stay, said two people who attended.

Guy Rosen, a Facebook executive who oversees the integrity division that is in charge of cleaning up the platform, said on a call with reporters last week that the changes were always meant to be temporary. “There has never been a plan to make these permanent,” he said. John Hegeman, who oversees the news feed, said in an interview that while Facebook might roll back these experiments, it would study and learn from them.

The news feed debate illustrates a central tension that some inside Facebook are feeling acutely these days: that the company’s aspirations of improving the world are often at odds with its desire for dominance.

In the past several months, as Facebook has come under more scrutiny for its role in amplifying false and divisive information, its employees have clashed over the company’s future. On one side are idealists, including many rank-and-file workers and some executives, who want to do more to limit misinformation and polarizing content. On the other side are pragmatists who fear those measures could hurt Facebook’s growth, or provoke a political backlash that leads to painful regulation.


“How Trump’s fundraising could benefit his post-White House political life”

Fredreka Schouten for CNN:

But the legal fine print on each shows that a new Trump fundraising arm, Save America, actually will get the first cut of any money that comes in. And because spending rules for leadership PACs are so loose, campaign-finance experts warn that Save America could easily become a political slush fund for Trump and those close to him.

Here’s a closer look at the President’s recent fundraising efforts and his new fundraising vehicle Save America…

The typical donor doesn’t read the legal fine print,” Paul Ryan, vice president of vice president of policy and litigation at Common Cause, told CNN.Ryan said few restrictions apply on the PAC’s spending. Should they choose to do so, Trump and his family members could draw salaries from Save America funds or direct its donors’ money to his businesses by hosting PAC events at a Trump-owned properties.

“This money could easily — and legally — end up in his own pocket in the coming years,” Ryan said. And even after the long-shot legal challenges to the 2020 election end, Trump “could tease a 2024 run for years and continue milking his supporters for contributions to this slush fund,” he added.


“Trump Administration Approves Start of Formal Transition to Biden”


President Trump’s government on Monday authorized President-elect Joseph R. Biden Jr. to begin a formal transition process after Michigan certified Mr. Biden as its winner, a strong sign that the president’s last-ditch bid to overturn the results of the election was coming to an end.

Mr. Trump did not concede, and vowed to persist with efforts to change the vote, which have so far proved fruitless. But the president said on Twitter on Monday night that he accepted the decision by Emily W. Murphy, the administrator of the General Services Administration, to allow a transition to proceed.

In his tweet, Mr. Trump said that he had told his officials to begin “initial protocols” involving the handoff to Mr. Biden “in the best interest of our country,” though his announcement followed weeks of trying to subvert a free and fair election with false claims of fraud.

Ms. Murphy’s designation of Mr. Biden as the apparent victor provides the incoming administration with federal funds and resources and clears the way for the president-elect’s advisers to coordinate with Trump administration officials.

The decision from Ms. Murphy came after several additional senior Republican lawmakers, as well as leading figures from business and world affairs, denounced the delay in allowing the peaceful transfer of power to begin, a holdup that Mr. Biden and his top aides said was threatening national security and the ability of the incoming administration to effectively plan for combating the coronavirus pandemic.

And it followed a key court decision in Pennsylvania, where the state’s Supreme Court on Monday ruled against the Trump campaign and the president’s Republican allies, stating that roughly 8,000 ballots with signature or date irregularities must be counted.

In Michigan, the statewide canvassing board, with two Republicans and two Democrats, voted 3 to 0 to approve the results, with one Republican abstaining. It officially delivered to Mr. Biden a key battleground that Mr. Trump had wrested away from Democrats four years ago, and rebuffed the president’s legal and political efforts to overturn the results.

By Monday evening, as Mr. Biden moved ahead with plans to fill out his cabinet, broad sectors of the nation had delivered a blunt message to a defeated president: His campaign to stay in the White House and subvert the election, unrealistic from the start, was nearing the end.


“Mich. Supreme Court rejects appeal, but 2 justices urge looking into election fraud claims”

Detroit Free Press:

In what is likely a final blow to the effort to delay the certification of election results in Michigan, the Michigan Supreme Court on Monday rejected an appeal in a lawsuit filed against Detroit and Wayne County election officials.

With all but Justice David Viviano agreeing, the court denied the request to stop the certification of Wayne County’s election results, writing in its order  “we are not persuaded that the question presented should be reviewed by this Court.” The Wayne County Board of Canvassers certified the county’s results Nov. 17.

But in a concurring statement to the court’s order, Justice Brian Zahra, joined by Justice Stephen Markman, urged the Wayne County Circuit Court to move quickly and “meaningfully assess” the plaintiffs’ allegations of electoral fraud.


“IA-02: Three counties use voting machines to assist hand recount, defying Secretary of State opinion”

Iowa City Press-Citizen:

Three county recount boards are defying a recent legal opinion from the Iowa Secretary of State’s Office and using a machine to aid the recount of ballots in the ultra-close 2nd District congressional race.

Recount boards in Scott, Johnson and Clinton counties — the three most populous in the district — justified the move, saying it is necessary to ensure that the recount board’s three members have time to examine ballots the machines couldn’t read for voter intent to see if any were filed for Republican Mariannette Miller-Meeks or Democrat Rita Hart but were not tallied accordingly.

Assistant Scott County Attorney Robert Cusack offered a legal opinion for his board writing that using a machine to assist the hand count is consistent with the recount board’s charge from Iowa Code to “tabulate all votes” and that a hand recount of all 60,000 votes is not required in light of the confidence in voting machines and the code’s own time constraint. …


More Election Administration Problems in NY: “Absentee ballots in limbo over lost sticky notes in Brindisi-Tenney House race”


The fate of 39 absentee ballots in the election between Rep. Anthony Brindisi and Claudia Tenney is up in the air after election officials admitted in court today that they lost sticky notes attached to some of the ballots.

Oneida County’s election commissioners told state Supreme Court Justice Scott J. DelConte that the color-coded notes explained how the ballots were handled and whether they were counted.

The ballots could be important in deciding the winner of the 22nd Congressional District election, one of three remaining undecided House races in the nation.

Tenney, a Republican from New Hartford, leads Brindisi, D-Utica, by somewhere betwene 100 and 300 votes, according to unofficial returns from eight counties in the district.

Oneida and Oswego counties have not made their final ballot counts public, leading to confusion over how many votes separate the candidates.

DelConte asked each of the eight counties in the district to securely deliver hundreds of disputed absentee and affidavit ballots to his Oswego courtroom today, beginning a process that could ultimately determine who wins the election.

It became clear early in the hearing with Oneida County officials that DelConte and the candidates’ attorneys were confused about certain ballots and the way the county’s elections commissioners organized them.


“How Misinformation ‘Superspreaders’ Seed False Election Theories”


On the morning of Nov. 5, Eric Trump, one of the president’s sons, asked his Facebook followers to report cases of voter fraud with the hashtag, Stop the Steal. His post was shared over 5,000 times.

By late afternoon, the conservative media personalities Diamond and Silk had shared the hashtag along with a video claiming voter fraud in Pennsylvania. Their post was shared over 3,800 times.l

That night, the conservative activist Brandon Straka asked people to protest in Michigan under the banner #StoptheSteal. His post was shared more than 3,700 times.

Over the next week, the phrase “Stop the Steal” was used to promote dozens of rallies that spread false voter fraud claims about the U.S. presidential elections.

New research from Avaaz, a global human rights group, the Elections Integrity Partnership and The New York Times shows how a small group of people — mostly right-wing personalities with outsized influence on social media — helped spread the false voter-fraud narrative that led to those rallies.

That group, like the guests of a large wedding held during the pandemic, were “superspreaders” of misinformation around voter fraud, seeding falsehoods that include the claims that dead people votedvoting machines had technical glitches, and mail-in ballots were not correctly counted.

“Because of how Facebook’s algorithm functions, these superspreaders are capable of priming a discourse,” said Fadi Quran, a director at Avaaz. “There is often this assumption that misinformation or rumors just catch on. These superspreaders show that there is an intentional effort to redefine the public narrative.”


Michigan Certifies Presidential Vote, with One Member Abstaining


Michigan’s statewide electoral board approved its presidential vote tally on Monday, resisting pressure from President Trump to delay the process and paving the way for President-elect Joseph R. Biden Jr. to receive the state’s 16 electoral votes.

The Michigan vote was one of the biggest setbacks yet for Mr. Trump, who had directly intervened in the state’s electoral process to voice support for Republican officials who had made false claims about the integrity of the vote, and invited Michigan G.O.P. legislative leaders to the White House on Friday. Those leaders said afterward that they would allow the normal certification process to play out.

After reviewing the state Bureau of Elections’ report, which showed Mr. Biden winning the state by 154,000 votes over Mr. Trump, the Michigan board, made up of two Democrats and two Republicans, voted 3 to 0 with one abstention to certify the results.


Disturbing News, Even Though It Does Not Affect PA Certification

Philly Inquirier:

Pennsylvania counties rushed Monday to certify their results from the Nov. 3 election, even as President Donald Trump and his Republican allies continued their increasingly long-shot legal effort to disrupt the cementing of the state’s final vote tally.

But as county boards of elections convened for what is normally little more than a sleepy formality, the impact of the president’s campaign to undermine trust in the integrity of the vote repeatedly reared its head.

In at least three of the state’s most populous counties, the boards split their votes along party lines. And small groups of voters speaking at public meetings urged elections administrators to reject vote tallies in several others. Many speakers cited unsupported allegations of widespread fraud, malfunctioning voting machines and claims about mail-in ballots that Trump and his supporters have spread without evidence in recent weeks….

Board votes in Allegheny and Luzerne — which Trump carried by 14 points — also split along partisan divides. But in all three counties, the dissenters were among the minority and the certifications were ultimately approved.


“How Trump placed a ticking time bomb at the center of our system”

Important point from Greg Sargent:

So is this really how it’s going to be? Will it now become a fact of our political life that Democrats will be required to win future presidential elections by steal-proof margins in order to prevail?

With President Trump’s attempts to overturn the election continuing in Michigan and Wisconsin, more Republicans are distancing themselves. They are “subtly urging” Trump to accept reality and are “losing patience” with his antics, we are told.

But in the very formulation that some of these Republicans have adopted — and in the sheer numbers who have refrained from going even this far — there is grounds for serious pessimism about what all this portends.

What happens if the last-ditch tactic Trump’s team has adopted — trying to get rogue GOP-controlled state legislatures to appoint pro-Trump electors to the electoral college in defiance of their state’s voters — becomes seen as a conventional tool of political warfare, akin to more typical voter suppression efforts?


“Trump repeats unfounded election fraud claims in late-night posts flagged by Twitter”


As more Republicans joined a chorus urging President Trump to concede the election and his legal team splintered over far-fetched conspiracy theories, President Trump spent Sunday at his private golf course in Virginia.

Then, just before midnight, he took to Twitter to repeat more of the unfounded claims of mass voter fraud that have animated his weeks-long resistance to acknowledging defeat to President-elect Joe Biden.

Trump’s tweets, which included another false claim that he “won” the election, were quickly flagged by Twitter with disclaimers.


“National security experts call on GOP leaders to rebuke Trump’s election claims”


A group of leading GOP national security experts — including former Homeland Security Secretary Tom Ridge — urged congressional Republicans on Monday to demand President Trump concede the election and immediately begin the transition to the incoming Biden administration.

“President Trump’s refusal to permit the presidential transition poses significant risks to our national security, at a time when the U.S. confronts a global pandemic and faces serious threats from global adversaries, terrorist groups, and other forces,” said a statement signed by more than 100 GOP luminaries.

The signers included Ridge, the former Pennsylvania governor who served as Homeland Security secretary under President George W. Bush, former CIA Director Michael Hayden and John D. Negroponte, who served as director of national intelligence.


Senator Rob Portman Oped Calls for Treating Biden as President-Elect

Cincinnati Enquirer oped:

This process has now been going on for about three weeks. The Trump campaign has taken steps to insist that only lawful votes were counted in key states, including filing numerous lawsuits. At this point, the vast majority of these lawsuits have been resolved and most of the remaining ones are expected to be resolved in the next couple of weeks. There were instances of fraud and irregularities in this election, as there have been in every election. It is good that those have been exposed and any fraud or other wrongdoing should be prosecuted to the fullest extent of the law, but there is no evidence as of now of any widespread fraud or irregularities that would change the result in any state….

I voted for President Trump, was a co-chair of his campaign in Ohio, and I believe his policies would be better for Ohio and the country. But I also believe that there is no more sacred constitutional process in our great democracy than the orderly transfer of power after a presidential election. It is now time to expeditiously resolve any outstanding questions and move forward. …

On or before Dec. 8, any ongoing efforts to ensure an accurate count must be concluded and the 2020 election brought to a close. In the meantime, the General Services Administration (GSA) should go ahead and release the funds and provide the infrastructure for an official transition, and the Biden team should receive the requested intelligence briefings and briefings on the coronavirus vaccine distribution plan. This is only prudent. Donald Trump is our president until Jan. 20, 2021, but in the likely event that Joe Biden becomes our next president, it is in the national interest that the transition is seamless and that America is ready on Day One of a new administration for the challenges we face.


“Election Case Risks Awkward About-Face for Biden Administration”

Bloomberg Law:

President-elect Joe Biden’s top lawyer at the Supreme Court may have no choice but to change the government’s position in an election dispute out of Arizona, the sort of pivot that is awkward for lawyers and irritates the justices.

The case, Brnovich v. Democratic National Committee, takes aim at voting restrictions passed by the state to limit out-of-precinct voting and restrict who can collect and return mail-in ballots. Republicans say the law is designed to prevent voter fraud while Democrats say it disenfranchises minority voters, who disproportionately vote outside their precincts and rely on others to handle their mail-in ballots.

That case is one in which the incoming Biden administration may do an about face, said Paul Bender, who was the second in command in the solicitor general’s office during the Clinton administration.

The new solicitor general will try to do as much as possible to avoid that, Bender said. “But sometimes, you just can’t.”

If pushed to change positions it could hurt the incoming solicitor general’s reputation as an apolitical actor, making arguments based on the law rather than political considerations….

Opening briefs are due Nov. 30, meaning that a Trump administration brief in support of the laws would be filed in early December—just weeks before Biden takes office.

While not unheard of, that timing may convince the Acting Solicitor General Jeffrey Wall to stay his hand. The Justice Department didn’t respond to a request for comment.

If Wall does file a friend-of-the-court brief, however, “it would be a big problem for the Biden administration,” Bender said.


New York: “Brindisi-Tenney House race shrouded in secrecy, confusion as campaigns battle over ballots”


Central New Yorkers who voted in one of the most competitive House races in the nation still don’t know the results 18 days after the election, whether their vote counted, or exactly what’s happening in a courtroom where the outcome may be decided next week.

Since the polls closed Nov. 3, the 22nd Congressional District election between Rep. Anthony Brindisi and Claudia Tenney has been shrouded in secrecy as lawyers for the campaigns fight behind the scenes over hundreds of absentee ballots that could tip the election.

Some counties declined to disclose updated absentee ballot counts this past week, or how many ballots have been disputed by the two campaigns.

It’s not even clear exactly how many votes separate Brindisi, D-Utica, and Tenney, a Republican from New Hartford. The two faced each other in a hotly contested rematch of a 2018 election that Brindisi won by about 4,400 votes….

On Friday, the judge met privately for about 90 minutes in an online video conference with lawyers for the Brindisi and Tenney campaigns. Lawyers and election officials for all eight counties, as well as reporters, were in a separate “virtual” room shut out from the judge’s conference.

When the judge emerged, he offered no explanation about what happened in the private meeting. DelConte said he would order disputed absentee and affidavit ballots to be delivered to his Oswego County courtroom on Monday for two days of review.

DelConte did not reveal how many ballots are in dispute. His law secretary, Eric Van Buren, said the judge would not agree to an interview, nor is a transcript available of the hearing.


My New New York Times Oped Argues We Should Worry Less About Whether Trump Can Steal the Election (He Can’t); Worry More About the Damage Being Done to Voting Rights and the Legitimacy of our Election System and Democracy

I have written this piece for the NY Times. It begins:

Even as the campaign lawsuits brought by President Trump over the 2020 election enter their death throes, many people continue to worry that Mr. Trump will find three Republican legislatures to magically snatch victory from the jaws of defeat. They are concerned that he will pull off an antidemocratic hat trick through maneuvers like delaying recounts in Wisconsin and blocking certification in Michigan to allow these legislatures to submit competing slates of electors to Congress. The goal is to prevent Joe Biden from securing the Electoral College votes he needs on Jan. 6 for Congress to declare him president.

The good news is that there is no real prospect that Mr. Trump can avoid a reluctant handover of power on Jan. 20. The bad news is that Mr. Trump’s wildly unsubstantiated claims of a vast voter fraud conspiracy and the litigation he has brought against voting rights have done — and will increasingly do — serious damage to our democracy. Our problems will deepen, in particular, because Mr. Trump’s litigation strategy has led to the emergence of a voter-hostile jurisprudence in the federal courts. New judicial doctrines will put more power in the hands of Republican legislatures to suppress the vote and take voters, state courts and federal courts out of key backstop roles.

Let’s start on the positive side. A federal district court opinion issued in Pennsylvania Saturday laid bare both the dangerousness and vacuousness of Mr. Trump’s litigation strategy. Rudy Giuliani, acting as one of the president’s lawyers, failed to persuade Judge Matthew Brann — an Obama-appointed Federalist Society member and former Republican official — to disenfranchise nearly seven million Pennsylvania voters and to let the state legislature name a slate of presidential electors. The court held that the Trump campaign offered a “Frankenstein’s monster” of a legal theory and that the complaint was full of nothing more than “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

Although the campaign has appealed the case to the Third Circuit, it is so weak it will get no better reception there or at the Supreme Court. There are no remaining legal cases that could plausibly overturn the election results in even one state where Mr. Trump has lost (much less the three he would need for a different result in the Electoral College)….

All of that is indeed good news, but I am quite concerned about what comes next. By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election. At least 300 times since the election, Mr. Trump has gone straight to his followers on social media to declare the election rigged or stolen and to claim, despite all evidence to the contrary, himself as the real victor. Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters. It should go without saying that a democracy requires the losers of an election to accept the results as legitimate and agree to fight another day; Republican leaders echoing Mr. Trump’s failure to support a peaceful transition of power undermine the foundation of our democracy. It’s not only the fact that we have had to say this, but that we keep having to repeat it, that shows the depths that we have reached.

Mr. Trump’s litigation strategy also will make things worse when it comes to voting rights. The common thread in his campaign’s postelection litigation connecting Trump allegations of people of color illegally voting in Democratic cities in swing states and corrupted voting machines is a lack of any evidence to support the claims. Many of the lawsuits have been laughed out of court for lack of evidence, voluntarily dismissed, or involve so few votes that they could not plausibly change the outcome. These unsuccessful lawsuits will nonetheless provide a false narrative to explain how it is that Mr. Biden declared victory and serve as a predicate for new restrictive voting laws in Republican states. They already provided a basis for the now-aborted attempt of Republican canvassing board members in Wayne County, Mich., to reject votes from Democratic-leaning Detroit, and could be the basis for a similar move by Republicans when the Michigan state canvassing board meets Monday.

And even as Mr. Trump has lost most of his postelection lawsuits, he and his allies had a good bit of success before the election in cases that will stymie voting rights going forward. Following the lead of the U.S. Supreme Court, federal appeals courts now routinely say that federal courts should be deferential when states engage in balancing voting rights — even during a pandemic — against a state’s interests in election administration and avoiding fraud, even when states come forward with no evidence of fraud. Under the so-called “Purcell principle,” courts increasingly allow states to make voting harder. They can do this whenever states are able to stall judicial proceedings long enough that they can claim a voting change comes too close to the election and will confuse voters and election administrators. Courts have issued other disturbing opinions, including allowing for age discrimination in the availability of mail-in ballots only for those older than 60 or 65, essentially short-circuiting litigation under the 26th Amendment, which bars discrimination in voting on the basis of age.

The worst appears yet to come. In one of the lawsuits that remains technically alive at the Supreme Court out of Pennsylvania, Mr. Trump and his allies have advanced a muscular version of something that’s become known as the “independent state legislature” doctrine. Taken to its extreme, the doctrine says that state legislatures have complete authority to set election rules absent congressional override, and that their power to set election rules cannot be overcome even by state supreme courts applying right-to-vote provisions in state constitutions….


Breaking: In Federal Case in Pennsylvania, Trump Campaign Seeks Very Limited Emergency Remedy in Third Circuit, and Does Not Ask for a Delay in Certification

In a new filing in the Third Circuit (that should appear on the docket tomorrow), the Trump campaign did not ask for the appeals court to issue an immediate order delaying certification, which is what I expected. They do not even ask for an immediate order reversing the trial court’s motion to dismiss and granting some kind of preliminary relief for additional discovery. Instead, the only ask, at least so far, is for an order for the district to consider on the merits the campaign’s proposed Second Amended complaint: “Appellants will request that this Court reverse denial of the Motion to Amend and direct the District Court to promptly decide it on the merits and proceed expeditiously to a hearing to enjoin certifying the results of the Presidential Election (or order decertification if already certified) if the Second Amended Complaint (ECF 172-2) is held to state valid claims.”

This is odd for a number of reasons. First, this is an emergency election case, and it seems crazy to me that if one were litigating over the presidential election one would NOT seek to get appellate review of an adverse ruling as soon as possible. Second, all that this asks for is for the district court to consider the proposed second amended complaint on the merits. Given the scathing ruling on the first amended complaint yesterday, and the similar defects with the second amended complaint (including lack of standing), there’s no reason to expect the district court would reach any different conclusion if it considered the second amended complaint. This is especially true given the deference usually applied to decisions about accepting a second amended complaint. Third, the motion does not even ask the Third Circuit to weigh in on the controlling legal case that was just decided last week by the circuit, something which is potentially the whole ball game on standing in the case.

There are other problems with this filing too, such as the odd claim that “The proposed Second Amended Complaint (ECF 172-2) asserts claims under the Civil Rights Act for violation of the Equal Protection and Due Process clause.” Those clauses are in the U.S. Constitution’s 14th Amendment, not the Civil Rights Act.

Just bizarre and weak.


“Pres. Trump election challenges sound alarm among Black voters”


President-elect Joe Biden was in part powered to victory in Michigan, Wisconsin, Pennsylvania and Georgia by Black voters, many of them concentrated in cities such as Detroit, Philadelphia and Atlanta where he received a significant share of their support. Since Election Day, President Donald Trump and his allies have sought to expose voter fraud that simply does not exist in these and other overwhelmingly Black population centers.

Such a plainly racist strategy to contest the election could erode Black voters’ trust in elections. Voting-rights advocates say they stand ready to beat back any efforts to water down the Black vote. But fears persist that Trump’s allies will undermine democracy and disenfranchise Black Americans and other voters of color.

Trump renewed his attack on Motown voters Thursday, tweeting without evidence, “Voter Fraud in Detroit is rampant, and has been for many years.”


“Attorney heading up Trump campaign’s Wisconsin recount effort is seeking to throw out his own vote”

Milwaukee Journal-Sentinel:

 The Dane County attorney overseeing the Trump campaign’s effort to recount and disqualify ballots in the state’s largest counties wants to throw out his own vote. 

Jim Troupis, a former Dane County judge and Cross Plains attorney who is representing the Trump campaign’s recount effort, voted early using the state’s in-person absentee option — one of a group of voters whose ballots the Trump campaign has asked election officials to deem illegal.

Troupis and his wife appear on exhibits he submitted to the Dane County Board of Canvassers on Sunday, during the county’s third day of retallying ballots. The exhibits include lists of voters who voted in a manner the campaign alleges is illegal, which the Board of Canvassers has rejected. The information was provided by Dane County to both campaigns. 


“Trump calls on GOP state legislatures to overturn election results”


President Donald Trump made explicit Saturday the strategy his legal team has been hinting at for days: He wants Republican-led legislatures to overturn election results in states that Joe Biden won.

“Why is Joe Biden so quickly forming a Cabinet when my investigators have found hundreds of thousands of fraudulent votes, enough to “flip” at least four States, which in turn is more than enough to win the Election?” Trump said, despite refusing to produce any such evidence either publicly or in court cases filed by his attorneys.

“Hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done to maintain the integrity of our Elections, and the United States of America itself,” Trump said.

Trump’s comment came after a string of legal defeats, including a rejection by a federal judge in Pennsylvania Saturday who said the Trump team presented no evidence of election fraud or misconduct, despite seeking to invalidate millions of votes. Trump’s lead lawyer in the case, Rudy Giuliani, said he intends to appeal the case to the Third Circuit and, if necessary, the Supreme Court.


“Michigan House speaker floats possibility of ‘constitutional crisis'”

Detroit News:

Michigan House Speaker Lee Chatfield referenced the possibility of a “constitutional crisis” during an interview on Fox News Sunday morning, two days after he huddled with President Donald Trump at the White House.

The Board of State Canvassers meets Monday to consider certifying Michigan’s statewide election results, including President-elect Joe Biden’s 154,000-vote victory. But top Republican Party leaders have asked the board to delay certification in a bid to investigate “anomalies and irregularities” they claimoccurred on Nov. 3.

The board features two Republicans and two Democrats. Many legal experts believe the panel has a duty, under Michigan law, to certify the results Monday.

“If there were to be a 2-2 split on the State Board of Canvassers, it would then go to the Michigan Supreme Court to determine what their response would be, what their order would be,” Chatfield, R-Levering said on “Fox & Friends” Sunday. “If they didn’t have an order that it be certified, well now we have a constitutional crisis in the state of Michigan. It’s never occurred before.”

But as Rick Pildes explained in the NYT:

The Biden campaign and Michigan voters would likely first turn to the state or federal courts. A court would likely issue an order to the state board to certify the result — legally, this is known as issuing a writ of mandamus — because the board’s legal duty is clear and unequivocal once it has received the certified vote totals from the counties. If the resistant board members were still willing to defy the court and go to jail (presidential pardons do not apply to state crimes), a court could also issue the certification itself.

Michigan’s governor also has legal powers she could invoke, though whether she would choose to do so would involve complex political judgments. Under the state’s Constitution, she has the power — the Constitution, actually, calls it a duty — to remove or suspend from office a canvassing board member for “gross neglect of duty,” “corrupt conduct” or “for any other misfeasance or malfeasance” in carrying out their duties. Failing to certify on the facts in Michigan would easily meet this standard.